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Tusla guidelines provide that suspects/alleged abusers may be permitted to interview complainants

In June, 2019 Tusla, the Irish Child and Family Agency set out how it intended to respond to new figures that showed the number of cases of retrospective abuse awaiting allocation to a social worker had overtaken the number of cases that had been allocated.

Figures published in January, 2019 by Tusla showed that the number of unallocated cases overtook the number of cases that had been allocated for the first time.

The number of monthly referrals of such cases peaked in January, 2019 at 321, and in February, 2019 the number of open cases of retrospective abuse stood at 2,824.

In addition to seeking to recruit more staff to deal with this issue, a spokesperson for Tusla at that time also referred to the fact that Tulsa was “… in the process of developing a new Child Abuse Substantiation Procedure (CASP) to replace Tusla’s 2014 Policy. Planning for the implementation of the new procedure is taking place, including review of resources and structures dealing with child abuse, including retrospective referrals.” the clear inference being that these new guidelines would help Tusla to deal with the backlog of investigations into cases of retrospective abuse.

The Irish Times reported earlier this week that it had seen these new guidelines which are due to come into effect in June, 2020.

Apparently Tusla staff are now being trained in how to apply these guidelines.

The most striking and controversial feature of CASP is that it provides that in certain circumstances the suspect/alleged abuser will be permitted to interview their alleged victims.

Experts in the area of child protection have serious concerns about the CASP guidelines, which they feel could lead to the “re-traumatising” of alleged victims and appears to them to be heavily weighted in favour of the rights of the suspect/alleged abuser.

CASP also appears to have been introduced to respond to issues that have arisen from a number of legal cases brought against Tulsa by people against whom allegations of abuse were made who say that Tulsa breached their rights in investigating those allegations.

Under CASP Social workers must “stress test” allegations when interviewing the complainant and must question the complainant to establish whether there may be an “alternative explanation” or “misinterpretation on their part” in relation to the allegations.

In some instances CASP provides that social workers should facilitate suspects/alleged abusers to “stress test” the allegations themselves by allowing them to personally question the complainants or witnesses.

This type of questioning will generally not be allowed if the complainant is a child or a vulnerable adult. However, the use of the word generally in this context is somewhat worrying as it seems to envisage situations where children and/or vulnerable adults may be questioned in this way.

CASP provides that if direct questioning of the complaint is not appropriate then the allegations can investigated in one of the following ways:-

allowing the suspect/alleged abuser to write out questions to be put to the complainant;

allowing their solicitor to question the complainant;

allowing the suspect/alleged abuser to ask questions via video link.

allowing a suspect/alleged abuser to be in the room (though possibly separated from the complainant by a screen) while questions are put by a social worker to the complainant.

Under the provisions of CASP Tusla staff have been told the suspect/alleged abuser should be told the identity of the complaint at an early age even if the “complainant is at serious risk from the [alleged abuser].”

Suspects/Alleged abusers are now in most instances to be allowed to tell their employers or partners that they are under investigation before Tusla does so.

When investigating and validating allegations of child abuse staff at Tusla must now also consider the impact their findings could have on an alleged abuser, including the following:-

the impact on their employment prospects,

the impact on their family or on childcare proceedings they are involved in.

In a statement published on its website earlier this week Tusla says that “The Child Abuse Substantiation Procedure (CASP) is a revision of the 2014 Policy “Policy and Procedures for Responding to Allegations of Abuse and Neglect”. It is based on learning that indicated the need to further enhance consistency of practice across the Agency. In addition, changes were also required to incorporate new legal judgments in this complex area of law and practice”

Commenting on the interviews that are provided for in CASP between the complainant and the suspect/alleged abuser, Tusla says that “There is a legal requirement to afford any accused person of their right to natural justice and fair procedures and to undertake stress testing”.

This is indeed the case in Ireland where suspects/alleged abusers have a constitutionally entitled right to fair procedures and due process. What is now clear is that CASP has been introduced by Tusla to take account of the emerging caselaw and Court directions on these rights but practitioners in the area say that this should have been provided for in primary legislation introduced by the Irish Government and not guidelines from Tusla.

Tusla went on to note that CASP makes no requirement that a complainant would be cross examined. While the right to due process in Ireland would allow the suspect/alleged abuser to seek to question or cross examine a complainant Tusla says that “… it fully recognises the right of the person making a disclosure to refuse this request and we would never undermine a person’s right in this context.”

As with all aspects of their work Tusla says that CASP will be open to review and change however, Tusla goes on to say that CASP has been introduced in an attempt to meet all of its responsibilities and duties having regard to a complex legal backdrop.

Clíona Saidléar, executive director of the Rape Crisis Network Ireland, met with Tusla chief executive Bernard Gloster yesterday and the CASP guidelines were discussed. Mr Gloster assured her there would be a “consultation process” around the guidelines before their full implementation, and that “the document was subject to change”,

We have written many times on this blog about how difficult it is to balance the competing rights and interests of the complainant and the suspect/alleged abuser when allegations of child abuse are made and the critical reaction to the CASP guidelines in Ireland is a further reminder that there are no easy solutions to achieving this balance.